This section is from the book "Popular Law Library Vol1 Introduction To The Study Of Law Legal History", by Albert H. Putney. Also see: Popular Law-Dictionary.
Four great legal conceptions underlie the whole study of law; rights, duties, wrongs, and remedies. It is in the order just given that these conceptions are most generally considered at the present time. "A system of laws promulgated by a lawgiver of sufficient wisdom and illimitable foresight would undoubtedly commence with a definition of rights, and thence proceed to prescribe duties, thence to prohibit wrongs, and finally to provide legal remedies." 14
"To the analytical jurist it may well seem that the ideal code might be framed in such order. It cannot, however, escape observation that the method of unfolding legal truth here indicated is exactly the reverse of the process by which law has, as a matter of fact, historically developed. To the finite, human mind legal truth has come as a sort of gradual revelation. Form, which is so conspicuous in early law, serves as a vehicle for the abstract. As the mind is gradually educated to the point of grasping the abstract, formality disappears. In legal thought, as in philosophic speculation, we must move through the concrete up to higher abstractions, and if we would conduct the reader over the true path of legal knowledge we must take a course exactly the reverse of that which the analytical jurist pursues in his speculations. In others words, instead of beginning with 'right' -a term so highly abstract - we must begin with the phenomenon of adjudication. The order in which the different conceptions appear is somewhat as follows: judge, court, adjudication, legal proceeding (action or remedy), wrong, duty, right.
13 McLean, J., in Kendall vs. States, 3 Howard, 792.
14 Robinson, Elements of American Jurisprudence, 155.
"It may at first seem strange that historically adjudication should precede the development of the conception of law, for according to existing ideas adjudication is only an application of law and presupposes the existence of a body of legal principles; yet it is nevertheless true that law is built up inductively by observing and comparing particular decisions.
"This conclusion is borne out to the utmost degree of certainty by all that we know of legal development in early society. What the early communities must have is a decider or arbitrator of disputes. It is obvious that the reverend and wise man, the priest, or the king, one who by virtue of his wisdom, power, and position can command the love and obedience of all, would be the first to fulfil the function of judge. The desire peacefully to settle disputes instead of resorting to violent modes of redress would gradually make itself felt throughout the community. The decisions of this primitive judge must inevitably reflect the current ideas of justice, and in course of time the points of likeness in many cases are observed and teach the community its first lesson in law." 15